History, analysis, and unabashed gossip about the start of the American Revolution in Massachusetts.

J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

Monday, October 23, 2006

One very important element of John Adams’s decision to defend the soldiers after the Boston Massacre of March 1770, especially as he described it while looking back from the next century, was that he did so in the face of public disapproval. He was "hazarding a Popularity very general and very hardly earned," he wrote in his Autobiography more than thirty years later.

In fact, Adams’s political popularity went up shortly after he agreed to take the case. As Adams recalled, “A Town Meeting was called for the Choice of a Successor to Mr. [James] Bowdoin” in the General Court in June 1770. “I was chosen by a large Majority.” (Indeed, 418 votes out of 536.) This was the highest office he'd held up to that time. Adams’s public career didn't suffer because of his military clients.

But agreeing to defend the soldiers was one thing. Actually helping to get most of them acquitted and the last two convicted of manslaughter rather than murder might have been more than Adams’s supporters had wanted. Perhaps he suffered from popular resentment after the verdicts in late 1770.

Again, Adams’s own words imply otherwise. According to his diary, on 29 Dec 1772 selectman Samuel Pemberton and town representative Samuel Adams (also John’s second cousin) asked him to “deliver an Oration in Public upon the ensuing 5th. of March.” This was an honor reserved for leaders among the Whigs.

Adams’s second reason was also the earliest evidence of his concern for the public disliking how he defended the accused:

the Part I took in the Tryal of the Soldiers. Tho the Subject of the Oration, was quite compatible with the Verdict of the jury, in that Case, and indeed, even with the absolute Innocence of the Soldiers yet I found the World in general were not capable or not willing to make the Distinction. And therefore, by making an Oration upon this Occasion, I should only expose myself to the Lash of ignorant and malicious Tongues on both Sides of the Question.

As I read that passage, Adams was not saying that people had already criticized him, but rather that they would start criticizing him if he attacked the soldiers’ actions in an oration after having defended them in court.

The Boston committee found someone else to orate on 5 March 1773. Here’s what John Adams wrote in his diary that day:

Heard an Oration, at Mr. Hunts Meeting House [i.e., Old South], by Dr. Benja. Church, in Commemoration of the Massacre in Kings Street, 3 Years ago. That large Church was filled and crouded in every Pew, Seat, Alley, and Gallery, by an Audience of several Thousands of People of all Ages and Characters and of both Sexes.

I have Reason to remember that fatal Night. The Part I took in Defence of Captn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the jury was exactly right.

This however is no Reason why the Town should not call the Action of that Night a Massacre, nor is it any Argument in favour of the Governor or Minister, who caused them to be sent here. But it is the strongest of Proofs of the Danger of standing Armies.

To me it looks like Adams was subconsciously feeling a little regret for not being the center of attention in Old South; he always did fancy himself an orator. He also seems to have been reassuring himself, perhaps a little too vigorously, that he’d done the right thing in 1770.

Adams’s 1773 remark about “Obloquy enough” is the earliest sign we have of anyone blaming him for defending the soldiers, and it's not a very strong sign. The diary doesn’t offer specific names or dates for that criticism. Probably there were some people who thought Adams made the wrong decision, just as Josiah Quincy, Jr., had to explain himself to his father in 1770, but there's no evidence that either attorney's practice, political standing, or person suffered as a result.

Nevertheless, by 1802, Adams wrote about his decision producing “a Clamour and popular Suspicions and prejudices, which are not yet worn out and never will be forgotten as long as History of this Period is read.” What had produced such a strong perception? By then he'd run for President twice in nasty partisan races; the Jeffersonians may well have used Adams's defense of the soldiers as evidence that he'd always been too pro-British.

But Adams had started to build up his perception of popular resentment about thirty years before, before he ever met Jefferson. In his desire to perceive himself as a "gallant, generous, manly and disinterested" servant of his country, Adams might simply have let his memories grow more stark.

None of this takes away from the principled decisions that John Adams made in 1770. He believed in the value of a fair trial—not just for the defendants' sake, but for society's sake. Despite opposing the presence of army regiments in Boston, and knowing most of his friends and neighbors did as well, he defended the accused soldiers with vigor and competence. Though he wrote about making his choice with "no hesitation," that decision was probably not easy.

And the loudest critic might really have been in the back of Adams's own mind.

7 comments:

This reminds me of Hamilton's defense of British soldiers in New York. These two Founders seem to have been looking long term. What does it say about the United States, a brand new country, if it does not stand for the rule of law? Both these cases did a lot for cementing the fact that this is a country of laws and not of men. Great blog, by the way. I'm glad I happened upon it.

Attorneys have an ethical obligation to accept cases whether they agree with the client's position or not. I'm not certain about the historical evolution of such ethical codes, but perhaps the source of them may have been the willingness of the founding lawyers to accept unpopular cases, both before and after the Revolution, such as representing British creditors against American debtors.

This thread raises a much more interesting question, which concerns the concept of jury nullification. Part of Revolutionary Justice was the notion that juries had the authority to ignore jury instructions on the law given by judges and to vote for acquittal despite overwhelming factual proof of "guilt."

History tends to favor the notion that the revolution was caused by commercial and taxation issues -- "no taxation without representation" -- but my impression is that the motives went far beyond that. It wasn't merely taxation, or even the lack of representation, that motivated the revolutionaries, but the repression of protest over taxes and representation, among other things, by prosecutions directed against protestors (including those who actually committing criminal acts, such as throwing tea in the harbor or assaulting tax collectors). Even so, that wasn't initially a problem, because colonial juries declined to convict protestors, recognizing that the protestors' actions lacked criminal intent -- instead, they were exercising a form of political free speech.

Yet the matter didn't rest there. What I perceive to be the "straw that broke the camel's back" was the decision by British authorities to ignore the right to "trial by jury of the vicinage" -- that is, to arrest revolutionaries, on bills of attainder rather than indictments, and transport those individuals to England to be tried without benefit of a jury in an Admiralty Court. What Adams referred to as the real revolution -- the events leading up to Lexington and Concord -- must be viewed as a process in which government action and protest escalated in response to each other, until both sides had passed the Rubicon of intolerance and negotiation.

This is perhaps why "jury nullification" died a fairly quick death after the Revolution (specifically, as a result of the Aaron Burr "conspiracy" trial and the acquittals relating to Jefferson's embargoes, circa 1807). Courts exist to "order" our liberty -- they are institutions to insure that disputes are settled peacefully without resort to violence. Throwing off the yoke of foreign imperialism is one thing, but when it comes to home-grown Whiskey Rebels, Filibusters, and blockade runners, independent juries become a liability rather than an asset to "ordered" liberty.

As a theory, however, "jury nullification" can be viewed as the democratic element of the judiciary, the equivalent of the legislative representation idea. The King can appoint judges, and Parliament can pass criminal laws, but lacking representation in either the executive or legislative functions, the "people" are represented on juries of the vicinage -- and hence can choose to ignore unpopular laws and inappropriate prosecutions.

Hence, John Adams' acceptance of unpopular clients must be viewed not by modern public views of jurisprudence (in which "justice" and "conviction" are often viewed as the same thing), but by colonial opinion. A prominent whig defending soldiers is perfectly consistent with the notion that the revolutionaries wished to preserve colonial rights, including juries of the vicinage, and the public -- moderate, liberal and conservative -- actually welcomed Adams' defense as preserving "ordered" liberty. The alternative was justice by a mob -- lynching -- and the Whigs wished to demonstrate (at least at that time) that they respected the institutions of legal justice and rejected that of the mobs. Adams' defense can thus be viewed as "political theatre", by revolutionaries seeking to assuage public opinion regarding sometimes questionable tactics.

Along with the Boston Massacre trials, the trial of Ebenezer Richardson for killing Christopher Seider in the same year seems to have established the precedent of lawyers representing even unpopular clients. The court basically ordered Josiah Quincy, Jr., to speak for Richardson, whose original lawyer kept finding medical reasons to stay out of court. Quincy was already helping to represent Preston and the soldiers, so he had no principled way to say no. Therefore, the principle that a lawyer should say yes prevailed.

Jury nullification or jury prejudice was a significant issue in the pre-Revolutionary conflict, though not as significant as taxes and representation and the presence of troops, I think.

The Crown certainly felt that the Richardson trial was little more than a lynching: rumors said there was even a rope waiting outside. The judges strongly suggested acquittal on the grounds of self-defense, then put off sentencing the convicted man to death until a pardon arrived from London.

From the other side, Crown officials brought Patriot writers like Dr. Joseph Warren and Joseph Greenleaf up before grand juries for libel or sedition. The local jurors refused to return indictments.

In both cases, both sides felt that they were seeking and protecting justice while the other side was perverting it.

The London government tried to impose changes on the provincial court system: salaries for judges free of local legislative control, more procedures in Vice-Admiralty Court. The Whigs perceived those changes as an attempt to permanently pervert justice.

However, there were no "prosecutions directed against protestors (including those who actually committing criminal acts, such as throwing tea in the harbor or assaulting tax collectors)," partly because the Crown could never identify such men and partly because assault was usually handled as a civil matter between victim and attacker. The Whigs had, at best, a "slippery slope" argument that eventually the ministry could try political opponents outside the province if those measures weren't stopped now.

The Massacre trials are incredibly sticky as examples for either view of Massachusetts justice. The judges leaned toward acquittal. The juries returned a mixed verdict: they acquitted Capt. Preston and most of the soldiers, but convicted two of manslaughter, a capital crime. But the jury knew that the men would be branded, not executed. What's more, the jury for Preston's trial may have been politically biased, according to Hiller Zobel's study. (A future Loyalist helped alert the defense lawyers to jurors' political leanings, then sat on the panel himself.) And those juries were specifically chosen to exclude men from Boston for fairness; the jurors came from modern-day Norfolk County. So both sides could have found reason to be pleased with those trials, and reason to be worried.

John Adams could also have been feeling the disapproval of his cousin Samuel. Since Samuel Adams loudly declaimed the "Massacre" and used it to rouse American sentiment against the British, he most likely would not have been happy with John for defending the soldiers.